Citation Nr: 0314788
Decision Date: 07/03/03 Archive Date: 07/10/03
DOCKET NO. 95-24 144A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
temporomandibular joint (TMJ) syndrome with headaches and
myofascial pain.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Dillon, Associate Counsel
INTRODUCTION
The veteran had active service from January 1989 to August
1991.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an August 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, which granted service connection for
TMJ syndrome with occasional headaches and assigned a zero
percent rating, effective October 15, 1992. Thereafter, by
July 1995 rating decision, the RO increased the rating of TMJ
syndrome with occasional headaches to 10 percent, effective
October 15, 1992.
REMAND
In December 1999, the Board remanded this case to the RO.
Unfortunately, it is again necessary to remand this claim.
In essence, the RO has not substantially complied with the
directives of the Board's previous remand. See Talley v.
Brown, 6 Vet. App. 72, 74 (1993). A Board remand confers
upon the veteran the right to compliance with the remand
orders, and VA has a duty to ensure compliance with the terms
of the remand. Stegall v. West, 11 Vet. App. 268 (1998).
First, the prior remand specifically instructed the RO to
consider both the old and new criteria pertaining to dental
and oral conditions. This was not accomplished. Second, the
RO was instructed to determine whether the veteran's
headaches merited a separate, compensable disability rating.
This, likewise, was not accomplished.
The veteran was scheduled for VA examination in compliance
with the Board remand in October 2002, but did not report.
However, she later stated that by the time she received the
letter notifying her of the examination, her appointment date
had already passed. Accordingly, she should be scheduled for
another VA examination, as set forth below.
Again, the Board points out that the veteran filed her
original claim for service connection for TMJ syndrome in
October 1992 and service connection was granted from the date
of receipt of that claim. The present appeal dates from that
claim. Subsequent to that time, however, the provisions of 38
C.F.R. § 4.150 for evaluation of dental and oral conditions
were amended, effective February 17, 1994. 59 Fed. Reg.
2,529-30 (Jan. 18, 1994). The regulations cited in the July
1995 Statement of the Case were those in effect from February
17, 1994. The regulations in effect prior to that time were
not cited. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Accordingly, the RO must consider both the old and new
criteria pertaining to dental and oral conditions and apply
the criteria which are to the veteran's advantage. The
veteran should be provided notice of both the old and amended
criteria via a Supplemental Statement of the Case (SSOC) .
The Board also again emphasizes that the veteran's disability
has been characterized by the RO as TMJ syndrome with
headaches and myofascial pain. See Esteban v. Brown, 6 Vet.
App. 259, 262 (1994). On remand, the RO should consider
whether all applicable symptomatology of the veteran's
disability is appropriately rated, to specifically include
whether any headaches merit a separate, compensable
disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code
8100 (2002).
In view of the foregoing, the matter is remanded for the
following actions:
1. Ask the veteran to provide the names and
addresses of all medical care providers (VA
and non-VA) who have treated her for her
service-connected TMJ syndrome with headaches
and myofascial pain since July 1995. Obtain
records from each health care provider she
identifies.
2. After the foregoing development has been
accomplished to the extent possible, and the
available medical records have been
associated with the claims folder, schedule
the veteran for a VA dental examination. The
claims file and a copy of this remand must be
made available to and reviewed by the
examiner prior to the requested examination.
The examiner should indicate in the report
that the claims file was reviewed. All
necessary tests should be conducted and the
examiner should review the results of any
testing prior to completion of the report.
The examiner must identify all residuals
attributable to the veteran's service-
connected TMJ syndrome with headaches and
myofascial pain, as well as comment on the
frequency and severity of those
manifestations (including headaches).
The examiner should be requested to
specifically measure inter-incisal and
lateral excursion of the TMJ (in inches and
millimeters) and comment on whether there is
any interference with mastication or speech.
The examiner should also assess whether there
is any malunion or nonunion of the mandible
and characterize any such abnormality as
slight, moderate, or severe. See 38 C.F.R. §
4.150, Diagnostic Codes 9903, 9904, and 9905
(1993 and 2002).
Whether there is any pain, weakened
movement, excess fatigability or
incoordination on movement should be
noted, and the examiner should opine
whether there is likely to be additional
range of motion loss due to any of the
following: (1) pain on use, including
during flare-ups; (2) weakened movement;
(3) excess fatigability; or (4)
incoordination. The examiner is asked to
describe whether pain significantly
limits functional ability during flare-
ups or when the TMJ is used repeatedly.
All limitation of function must be
identified. If there is no pain, no
limitation of motion and/or no limitation
of function, such facts must be noted in
the report.
Any indications that the veteran's
complaints of symptomatology are not in
accord with physical findings on
examination should be directly addressed
and discussed in the examination report.
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
3. Review the claims folder and ensure that
all of the foregoing development actions have
been conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Remand instructions of the Board are neither
optional nor discretionary. Stegall v. West,
11 Vet. App. 268 (1998).
Also, ensure that all notification and
development action required by the Veterans
Claims Assistance Act of 2000, Pub. L. No.
106-475 is completed.
4. Readjudicate the veteran's claim and
consider whether all applicable
symptomatology is appropriately rated, to
specifically decide whether the veteran's
headaches merit a separate disability rating.
Also, consider the provisions of 38 C.F.R. §§
3.321(b)(1), 4.10, 4.40, 4.45, and 4.59, as
well as the old and new regulations
pertaining to the evaluation of dental and
oral disabilities.
In so doing, review the evidence of record at
the time of the 1993 rating decision that was
considered in assigning the original
disability rating for the veteran's
disability, then consider all the evidence of
record to determine whether the facts show
that she was entitled to a higher rating for
this disability at any period of time since
her original claim. See Fenderson v. West,
12 Vet. App. 119 (1999).
5. Finally, if the benefit sought on appeal
remains denied, the veteran and her
representative, if any, should be provided an
SSOC and be given an appropriate period to
respond. The SSOC must contain notice of
both the old and new regulations pertaining
to the evaluation of dental and oral
disabilities. 38 C.F.R. § 4.150, Diagnostic
Codes 9903, 9904, and 9905 (1993 and 2002).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter that
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). The purposes of this
REMAND are to obtain additional information and comply with
due process considerations. No inference should be drawn
regarding the final disposition of this claim as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).